Serving a Section 21 Notice

We recently had a enquiry on the Landlord Forum asking whether it was a good idea to serve a section 21 notice at the start of a tenancy. A section 21 notice refers to the notice required under section 21 of the Housing Act 1988 giving the tenant notice of the landlords intention to seek possession.

It’s an essential part of the possession process.

Should I serve a section 21 notice at the start of a tenancy?

I remember going to a seminar many years ago where the resident ‘legal eagles’ tip was to consider serving the section 21 notice at the start of the tenancy. His logic , which I can’t really fault is that in his experience the biggest reason why landlords failed to secure possession is that they get the dates in their section 21 notice wrong. Getting the dates wrong in this very simple notice is one of the biggest reasons why the courts fail to grant possession to a landlord. The Chairman of the London Association of District Judges recently identified that 7 out of 10 cases for possession bought before London courts failed on this ground. By presenting the tenant with the section 21 notice at the start of the tenancy, then the chances of getting the date wrong are minimised.

For example if I was setting up a tenancy on the 3rd August for a 6 month fixed term tenancy I would put the possession date as the 3rd February. Not only do you reduce the risks of getting this administrative task wrong but also he advised that this pre-emptive act looks far less of an aggressive act by you as the landlord than serving the notice half way through the tenancy (this can look like you are expecting trouble and have lost trust in your tenant). Also by getting the tenant to sign the section 21 notice at the beginning of the tenancy means that you are not left playing the ‘cat & mouse game’ with the tenant over whether the tenant has been duly served with the section 21 notice. Landlords who have gone to court will be familiar with a tenant maintaining that they have not received the section 21 notice through the post even when it was sent as a recorded delivery. The best form of service of legal documents is always by hand and where the tenant signs for it to say they have received the section 21 notice.

The power of a section 21 notice

Any landlord should be aware of the power of the section 21 notice. The legislation is clear that if a section 21 notice has been served correctly then the courts must give the landlord possession at the expiry of the notice. This is unlike using a section 8 notice where possession is fault based and discretionary.

The other big advantages of serving the section 21 notice at the start of the tenancy is that if the tenant falls into arrears 4 or 5 months into the tenancy then you can get a possession order after the expiry of the 6 month fixed term tenancy and not have the delay of having to wait for the two month notice period to elapse first. Because of this, the possible delays in the court system and the fact the Judge will give the tenant time to vacate your property then obtaining possession of your property may not occur for 3-5 months after your tenant stops paying the rent.

This can be a very costly wait, especially when a landlord is still paying out for an expensive buy-to-let mortgage.

Can a landlord serve a section 21 notice at the start of the tenancy. Our legal expert in the landlord forum Jeffrey Shaw of Netheredge Law maintains the law is clear.

Jeffrey states that “a s.21(1)(b) Notice cannot be served until after the letting starts”

By serving a section 21 notice on the same day as the start of the tenancy then it may not be clear to a Judge which came first. This element of ambiguity could be enough for the section 21 notice to fail (it would be interesting to hear from other landlords whether a court has thrown out their possession order on these grounds). I guess one way to establish that the section 21 notice came after the tenancy was created would be to enter the time on the tenancy agreement and the section 21 notice.

It seems clear that there are considerable advantages of serving the section 21 notice at the start of the tenancy. However, looking at the legalities of this it is also true that a landlord may be exposing themselves to a potential legal challenge. I’d be interested in hearing other landlords experiences.

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